CITATION: Okosun v. Minniti, 2020 ONSC 1354

COURT FILE NO.: DC- 19- 0078

DATE: 20200302

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: John Okosun

Tenant

AND:

Laura Minniti

Landlord

Laura Minniti, self-represented

John Okosun, self represented

HEARD: February 27, 2020

ORDER

[1] On February 27, 2020, at the conclusion of the hearing, this court ordered the following:

a) the Tenant to pay the sum of $7,500 to the Tenant on account of rental arrears within 30 days of today's date;

b) if the Tenants fails to pay the $7,500, the Landlord may bring a motion before me (with a sworn affidavit attesting to the non-payment) at 9 am on a date to be fixed by the Trial Coordinator's Office; and

c) In the event, the Tenant pays the $7,500 set out herein, the appeal is to be expedited if possible.

[2] Written reasons were to follow. These are those reasons.

Background and the Motion

[3] The Landlord is the owner of 817 Genovese Place, Mississauga pursuant to a written lease date January 14, 2015. The monthly rent is $1,700 plus utilities.

[4] The Tenant has been routinely delinquent paying his rent on time and the utilities as required.

[5] As a result of the Tenants’ breaches, in 2018, the Landlord sought to terminate the tenancy. The parties first came before the Landlord and Tenant Board ("Board") on April 17, 2018. The Board ordered the Tenant pay arrears by July 2018 and pay ongoing rent on time. The Tenant failed to do so.

[6] The tenancy was terminated by Board order issued on November 28, 2018. The Tenant was to move out by December 9, 2019.

[7] The Tenant brought a motion to set aside the tenancy termination order. A date for the hearing was set for December 18, 2018. The Tenant failed to attend.

[8] The Board issued an order confirming the termination of the tenancy on December 20, 2018.

[9] On March 25, 2019, the Tenant requested a review of the December 20, 2018 order. On March 27, 2019, the December 20, 2018 order was stayed until the review was completed by the Board.

[10] The review was to take place on May 2, 2019 but was adjourned on consent. The new date for the hearing was July 23, 2019.

[11] On July 23, 2019, the Landlord was present and ready to proceed. The Tenant sought an adjournment on the basis his paralegal was delayed in another proceeding. The Board received a text message from the Tenant's paralegal not requesting an adjournment. As a result, the Board denied the adjournment for various reasons (set out in its decision) including that, since the November 28, 2018 order, the rent arrears had continued.

[12] What appears in the evidence before this court is that the paralegal was asked to represent the Tenant only the day before and the paralegal had not committed to represent the Tenants at the hearing. The paralegal confirmed that "prior to any hearings", he "withdrew my representation" of the Tenant.

[13] The hearing proceeded on July 23, 2019. Evidence was called.

[14] The Board, by order dated August 9, 2019, denied the Tenants' request for a review and lifted the stay issued on November 28, 2018.

[15] On August 16, 2019, the Tenant appealed to the Divisional Court.

[16] On August 21, 2019, this court stayed the Board's order of August 9, 2019.

[17] The Tenant delayed this appeal by late ordering and obtaining the transcripts. That issue was resolved in late November 2019. The appeal is now perfected. The next scheduled Divisional Court hearings are on October 26, 2020.

[18] On December 19, 2019, the Landlord brought this motion to quash the appeal as it discloses no error of law or, in the alternative, payment of security for costs, payment of all outstanding arrears, lifting this court's stay, and immediate termination of the tenancy.

Analysis

[19] The Landlord's evidence is that the rental arrears have continued since April 2019 (albeit with some partial payments).

[20] The Tenant says to this court that he is having difficulty paying but will "try" to pay arrears and ongoing rent. He calls this a "hiccup" in the payment of arrears despite the various findings of the Board.

[21] When asked the amount of the arrears, the Tenant states that he doesn't know the amount of the rental arrears but says “it is no more than $4,000” because he alleges there are uncredited cash payments, but he advances no proof of that.

[22] The evidence demonstrates that the Tenant has failed to pay the utilities.

[23] While the Tenants is at fault for the delay in the appeal, some of the delay (and possibly confusion) in this matter is the fault of the Landlord. The Landlord appears to have negotiated with the Tenant, despite his significant arrears, history and outstanding Board orders, to increase the rent to $2,200 per month, except that she did so without compliance with the rental increase legislation. The matter went before the Board on this issue on January 31, 2020. The Board found the Landlord's rent increase to be void.

No Alleged Error of Law

[24] It is difficult to assess whether the Tenant raises an error of law or whether it has any merit.

[25] An alleged error of law does not clearly appear from the Notice of Appeal. Yet, given that he is self-represented, the Notice of Appeal must be read liberally.

[26] The issue is whether the adjournment should or should not have been granted. While the appeal looks extremely “thin”, it is possible that it raises a genuine issue of law, I am not prepared to dismiss the appeal and deprive the Tenant a full opportunity to make submissions why his appeal should be granted.

Ancillary Relief sought

[27] I agree that the stay granted on August 9, 2019 should be varied in light of the delay by the Tenant in perfecting the appeal, the delay in the scheduled hearing date and the Tenants' admitted continuing failure to pay ongoing rent and utilities.

[28] It is now one and a half years since the Tenant's failure to pay rent has been before the Board and the Courts. It will be another 9 months before this appeal is heard. It would be inequitable to permit the Tenant to remain in the premises without paying some amount on account of the arrears and utilities.

[29] I see no basis to order security for costs given that both parties are self-represented.

[30] As a result, I grant the relief as follows:

a) the Tenant shall pay the sum of $7,500 to the Tenant on account of rental arrears within 30 days of today's date;

b) if the Tenants fails to pay the $7,500 as ordered, the Landlord may bring a motion before me (with a sworn affidavit attesting to the non-payment) at 9 am on a date to be fixed by the Trial Coordinator's Office; and

c) In the event, the Tenant pays the $7,500 set out herein, the appeal is to be expedited.

[31] To be clear, the Tenants must continue to pay ongoing rent and utilities and if the Tenant fails to do so, the Landlord may renew this motion before me including to seek the termination of the stay order of August 9, 2019.

COSTS

[32] It is appropriate that costs of today be dealt with by the court hearing the appeal.

Ricchetti, J.

Date: March 2, 2020